Trump's National Security Tariffs Have Nothing To Do With National Security

John Brinkley
, ContributorI write about international trade and investment.Opinions expressed by Forbes Contributors are their own.

One thing that hasn’t been made clear enough about President Trump’s imposition of tariffs on steel and aluminum imports is that those imports don’t threaten national security, as Trump claims.

Surrounded by steel and aluminum workers, President Trump signs a 'Section 232 Proclamation' on steel imports during a ceremony in Roosevelt Room the the White House March 8. (Photo by Chip Somodevilla/Getty Images)

It’s obvious that he used the national security argument as a pretense for something he wanted to do, but for which he had no other legal justification. The Commerce Department sent him a report in February saying that steel and aluminum imports did, in fact, threaten national security and recommending he impose steep tariffs on both.

The report recommended that Trump invoke Section 232 of the Trade Adjustment Act of 1962, which allows the president to block imports that he deems threatening to national security. Unlike other trade laws, it doesn’t require him to get congressional approval or a review by the independent U.S. International Trade Commission.

Not only that, the World Trade Organization charter allows heads of state to take pretty much any trade action they want in the name of national security.

So, it’s air-tight, right?

Not exactly.

The national security argument is a sham and everyone knows it. Not even Defense Secretary James Mattis bought it. He read the Commerce Department report before it went to Trump, and this is what he said about it in an undated memorandum to Commerce Secretary Wilbur Ross:

“The U.S. military requirements for steel and aluminum each represent only about 3% of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements.”

Those two sentences will be useful to any country that wants to challenge Trump’s tariffs in the WTO. So will the fact that he granted exemptions to Canada and Mexico, the largest and fourth largest exporters of steel to the United States, respectively, and now to Australia.

That country’s Prime Minister, Malcolm Turnbull, tweeted Monday that he and Trump had reached an agreement whereby the United States wouldn’t impose the tariffs on Australia.

Trump said he would consider doing the same for countries that had good trade and security relationships with the United States.

A foreign government could reasonably argue in a WTO tribunal that the tariffs are purely protectionist measures disguised as an effort to protect national security. It could argue that they are actually safeguard measures, anti-dumping duties or countervailing duties.

They could argue that Trump would not have let Canada and Mexico off the hook if he were really worried about national security. He himself said he had done that in order to arm-twist Canada and Mexico into giving ground in the on-going renegotiation of the North American Free Trade Agreement: either they make concessions they don’t want to make or they get the tariffs too.

They could argue, correctly, that automation and reduced demand have had more to do with the steel industry’s shrinkage over the last 30 years than imports have had.

In a post to the “International Economic Law and Policy Blog,” George Washington University Professor Steve Charnovitz said GATT and WTO rules hold that “if the US Section 232 action is taken ‘without prior consultation,’ and if the U.S. action threatens serious injury, and if such damage would be ‘difficult to repair,’ then the right to retaliate by other WTO Members such as the EU, Brazil or South Korea would begin upon the taking of the Section 232 action by the United States.”

Assuming the governments of those countries and others agree with that interpretation, they are no doubt busy devising their legal arguments for complaints to the WTO on March 23, when the tariffs will take effect.